Karnataka High Court
Shivaraj Urs vs Union Of India on 9 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 1371
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2020
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
CRIMINAL PETITION No.2566 OF 2020
BETWEEN :
SHIVARAJ URS
S/O RAMACHANDRAN URS
AGED 37 YEARS
R/AT VILLA NO.24
AWHO, P-6
ARMY LAYOUT
BILLAMARANAHALLI
BANGALORE-560 057
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON
BANGALORE) ... PETITIONER
(BY MR. HASHMATH PASHA, SENIOR ADVOCATE FOR
MR. KALEEM SABIR, ADVOCATE)
AND :
UNION OF INDIA
NARCOTIC CONTROL BUREAU
BANGALORE ZONAL UNIT
BANGALORE-01
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR)
MR. MADHUKAR DESHPANDE) ... RESPONDENT
(BY MR. MADHUKAR M. DESHPANDE, CGSC)
[THROUGH VIDEO CONFERENCE]
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
NCB FILE NO.48/1/6/19/BZU ON THE FILE OF RESPONDENT
NARCOTIC CONTROL BUREAU, BENGALURU ZONAL UNIT,
BENGALURU FOR THE OFFENCE P/U/S 8 R/W 22, 28, 29 OF
NDPS ACT WHICH IS PENDING IN SPL.C.C. NO.1197/2019 ON
THE FILE OF THE HON'BLE XXXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPL. JUDGE FOR NDPS CASES,
BENGALURU.
THIS CRIMINAL PETITION, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.06.2020, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:-
ORDER
This is third bail application filed by second accused in NCBF No.48/1/6/2019/BZU on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bengaluru.
2. Petitioner had moved his first bail application numbered as Criminal Petition No.4448/2019 prior to Narcotics Control Bureau ('NCB' for short) filing its complaint before the Special Judge. It was dismissed by this Court on 11th October 2019. Petitioner moved his second application in Criminal 3 Petition No.8091/2019. In the said petition, he restricted his ground only to Section 167(2) Cr.P.C. The said petition was also dismissed on 28th May 2020. This is the third petition.
3. Mr. Hashmath Pasha, learned Senior Advocate for Petitioner, urged following grounds in support of this petition:
• an order passed on a bail application is akin to an order passed on an inter-locutary application. Therefore, an unsuccessful petitioner can move the Court in succession, should there be change in circumstances;
• petitioner had moved this Court for the first time whilst the investigation was in progress. Now, investigation is complete and NCB has filed its complaint before the designated Court. Filing of complaint after investigation is akin to filing a charge-sheet/ Challan under Section 173 Cr.P.C. Therefore, petitioner's custody is not required for the purpose of investigation;4
• the authorization given by the Superintendent, NCB, on 1st May 2019 has not been issued in favour of Shri. Virender Singh, the Intelligence Officer in the normal course of official business. It appears as a 'document' created at a later point in time because it contains the signatures of two witnesses namely Shri. Babu Singh Balavath and the Police Inspector Shri. B.R. Jagadish on the authorization. Therefore, search and seizure operation conducted by Shri. Virender Singh is without authorization and therefore the entire operation is illegal;
• in NCB's complaint there is no reference to the authorization given to the Intelligence Officer;
• panchanama drawn after search of residential premises belonging to the petitioner conducted between 22.00 hours on 1st May 2019 to 06.00 hours on 2nd May 2019 is allegedly drawn by the Intelligence Officer. It also contains the signature of the Superintendent, who has allegedly given authorization to the Intelligence officer to conduct search and seizure;5
• in their respective statements, the witnesses to the panchanama have not spoken about the authorization and the presence of the Superintendent during the course of search and seizure;
• accused No.1 and 3 have been enlarged on bail by this Court. Therefore, accused No.1 is also entitled for bail on the ground of parity.
4. In substance, Mr.Hashmath Pasha argued that Intelligence Officer does not have power to conduct search and seizure. He has conducted the search and seizure based on an authorization given by the Superintendent. The said authorization appears to have been prepared after the search. Therefore, all proceedings conducted by the Intelligence officer are vitiated.
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5. Shri. Madhukar Deshpande, learned Advocate for respondents argued opposing the petition.
6. I have carefully considered rival contentions and perused the records.
7. Rival contentions urged on behalf of parties raise following questions:
(i) Whether successive bail petitions are maintainable?
(ii) Whether the plea of illegality during search entitles petitioner for grant of bail?
(iii) Whether petitioner is entitled for bail on the ground of parity?
Re: Successive bail petitions
8. Mr.Hashmath Pasha cited paragraph No.2 in Babu Singh and others Vs. State of U.P.1 and paragraph No.22 in Lt. Col. Prasad Shrikant 1 AIR 1978 SC 527 7 Purohit Vs. State of Maharashtra2 in support of his contention.
9. In Babu Singh, it is held that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials and further developments.
10. In Lt. Col. P.S.Purohit, it is held that an accused has a right to make successive applications for grant of bail and the Court entertaining such subsequent bail application has a duty to consider the reasons and grounds on which the earlier bail applications were rejected and to record fresh grounds which persuade it to take a view different from the one taken in the earlier applications.
11. It is settled that successive bail applications can be moved with change in circumstances. The 2 AIR 2017 SC 3986 8 present application is presented after NCB filing its complaint before the designated Court. Complaint filed by NCB under Section 36A(1)(d) of NDPS Act is akin to a charge sheet filed under Section 173 Cr.P.C. The main argument advanced on behalf of petitioner is with regard to validity of authorization and the same is dealt in the next point for consideration. Re: Illegality in search and seizure operation
12. It was urged by Mr.Hashmath Pasha that the entire search and seizure operation is illegal because the alleged search has been conducted by Shri.Virender Singh, the Intelligence Officer without proper authorization under Sub-Section (2) of Section 41 of NDPS Act.
13. An authorization can be given by an empowered Officer if he has reason to believe from personal knowledge or information given by any 9 person and taken in writing that any person has committed an offence and the drug or any psychotrophic substance in respect of which an offence under the Act has been committed, which is liable for seizure and kept or concealed in any building, 'may authorize' any Officer subordinate to him to arrest such person or search the building by day or by night.
14. It is not in dispute that Shri. Virender Singh has conducted the search and seizure operation. The question is whether the authorization given by Shri. Aravind. M.R., Superintendent, NCB, Bangalore on 1st May 2019 is in accordance with law. Learned Senior Advocate argued that the authorization contains the signatures of two other persons namely Shri. Babu Singh Balawat, Superintendent, Central Excise and Customs, Bengaluru and Shri. B.R.Jagdish, Police Inspector, Kengeri Police Station, Bengaluru. 10
15. Mr.Hashmath Pasha submitted that in the notices issued to the Panch witnesses, they were called upon to reach the place required to be searched and they have reached the place of search directly. Therefore, in ordinary course, they could not have reached the NCB office before search. Further there is no requirement in law to obtain the signature of witnesses on the notices. Therefore, it must be construed that authorization was not given prior to search but it has been prepared subsequently.
16. Learned Senior Advocate further submitted that the copy of panchanama records that search operation commenced at 20.00 hours on 1st May 2019. At the end of the panchanama, signature of the Superintendent is also found. His signature on the Panchanama creates doubt in the mind of any prudent person, as he had already authorized Shri.Virender 11 Singh to conduct the search and therefore his presence during search is unlikely.
17. In substance, Shri.Hashmath Pasha sought to drive home the point that search has been conducted by Shri.Virender Singh without first having a proper authorization and that both documents namely, the authorization and Panchanama have been prepared in the office of DRI. In support of this argument, he relied upon following authorities:
(1) K.L.Subbayya Vs. State of Karnataka.
(1979)2 SCC 115 (paragraphs No. 3 and 4) (2) Roy V.D. Vs. State of Kerala (2000)8 SCC 590 (paragraphs No.16 to 20) (3) Sarija Banu alias Janarthani alias Janani and another Vs. State, through Inspector of Police (2004)12 SCC 266 (paragraph No.7) (4) Ritesh Chakarvarti Vs. State of M.P. (2006)12 SCC 321 (paragraph No.41) (5) Directorate of Revenue and another Vs. Mohammed Nisar Holia 12 (2008)2 SCC 370 (paragraphs No.14 to 17) (6) Sujit Tiwari Vs. State of Gujarat and another, 2020 SCC Online SC 84 (paragraphs No.9 to 11)
18. In K.L.Subbayya3, appellant therein had challenged his conviction and sentence on the ground that the Inspector of Excise who searched in the car had no jurisdiction because he did not comply with Section 54 of the Excise Act. A finding has been recorded by the Apex Court that the Excise Inspector had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act was being committed before proceeding to search the car and thus, provisions of Section 54 of the Act were not complied with. But it is significant to note that appellant therein had approached the Apex Court after conviction. In the case on hand, trial is yet to begin.
3 (1979) 2 SCC 115 13
19. In Roy V.D.4, petitioner's application to quash proceedings before the learned Sessions Judge was dismissed by the High Court of Kerala and the same was challenged before the Apex Court. Facts recorded in the judgment show that Roy was searched by an Excise Inspector and on the allegation of recovery of Ganja, he was taken into custody on 21st November 1990. Charge Sheet was filed by the Excise Inspector on 20th February 1991. A statutory notification was issued on 20th October 1992 authorizing Officers of and above the rank of Excise Inspectors to file complaints under Section 36-A(1)(d) of NDPS Act. It was contended before the Apex Court that the recovery of illicit material during search made by Excise Inspector was not authorized under Section 41(2) and 41(1) of NDPS Act and therefore, no charge could have been laid against the appellant. In 4 (2008) SCC 590 14 paragraph No.20, a finding has been recorded by the Apex Court that search and recovery were made by an Officer, who was not empowered to do so and accordingly, proceedings against the appellant therein were quashed.
20. In contradistinction, in the case on hand, charge-sheet papers include authorization under Sub-section (2) of Section 41 of NDPS Act. In the earlier bail petition(Criminal Petition No.4448/2019), it was urged on behalf of the petitioner that the Panchanama dated 1st May 2019 is contrary to law. NCB had placed on record the authorization issued by the Superintendent and the same has been considered in paragraph No. 15 of the order passed on first bail petition.
21. Therefore, it would not be open for the petitioner to re-agitate the same again in this petition. 15 Undisputedly, the authorization forms a part of the documents annexed to the complaint. It's veracity can be examined only during the trial.
22. In Sarija Banu5, appellant therein was taken into custody after search, when found with 5 kgs. of ganja and Rs.10 lakhs in cash. Based on her confessional statement, search was conducted in a building in Madurai, in which the second appellant therein was staying. Both appellants were taken to a house in Chennai and it was alleged that 10 kgs. of ganja and cash were recovered. An application moved before both the learned Sessions Judge and the High Court were dismissed. It was urged before the Apex Court that one Kandaswamy had sent telegram to the Home Secretary, the Governor and the Commissioner of Police and others stating that police party had illegally entered into the house of the appellant and 5 (2004) 12 SCC 266 16 taken them into custody; and that their whereabouts were not known.
23. The Hon'ble Supreme Court of India has recorded that the telegram was not disputed and it was stated on behalf of the respondents that they could not find the whereabouts of Kandaswamy. It is further recorded that it appeared that 'something happened on 09.07.2003 and it was a relevant consideration for grant of bail. It is also recorded that 'having regard to the special facts of the case', bail was being granted.
24. Thus the authority in Sarija Banu's case, hinges upon the facts of that case.
25. Relying upon Ritesh Chakravarthy6, Mr. Hashmath Pasha urged that search is required to be conducted in presence of independent persons. 6 (2006) 12 SCC 321 17
26. Relying upon Mohammed Nisar Holia7, it was urged that there was no compliance with requirements of Sections 42 and 43 of NDPS Act.
27. It is relevant to record that authorities in Ritesh and Mohammed Nisar Holia deal with statutory compliances while conducting search. The first bail application was filed after the search and seizure. Therefore, the same facts do not fall within 'changed circumstance' to reconsider the earlier order.
28. In Sujith Tiwari8, brother of the Master of the Ship, Supreet Tiwari was the appellant. The Indian Coast Guard intercepted the Vessel, 'M.V.Hennry'. The Master of Ship and other crew did not possess any license or document pertaining to departure from the last Port i.e., Abu Dabi or the next Port of call i.e., Bhavnagar in Gujarat. They were found carrying 7 (2008) 2 SCC 370 8 2020 SCC online SC 84 18 1445 kgs. of narcotic substances. NCB, after investigation filed complaint against the Master, seven crew members and five other persons including Sujit Tiwari. It has been recorded by the Apex Court that even if the prosecution case is taken at the highest, the appellant was aware that his brother was indulging in some illegal activity and that it could not be said at that stage with certainty whether he was aware that drugs were being smuggled on the Ship or not. Whereas, in the case on hand, the allegation is, petitioner herein delivered a bag containing contraband to accused No.1 on 30th April 2019. On the following day, in search and seizure operation conducted in his residence, two polythene bags containing 12.81 kgs. and 12.64 kgs. and in all weighing 25.45 kgs. of contraband was seized. It is not disputed that the contraband found is Ketamine 19 Hydrochloride. Therefore, the authority in Sujit Tiwari is applicable to the facts of this case.
29. Shri.Deshpande has relied upon following authorities:
State of Orissa Vs. S. Mohanty and others (2000)2 SCC 170 (paragraph No.6) Supdt. Narcotics Control Bureau, Chennai Vs. R.Paulsamy.
(2000)9 SCC 459 (paragraphs No.5 and 6) State of Kerala etc. Vs. Rajesh etc. 2020 SCC Online SC 81 (paragraphs No.18 to 23)
30. In S.Mohanty9, the Deputy Superintendent of Excise, who had authorized the Sub-Inspector to search, was also present and supervised the raid. Search and Seizure was done under his instructions and supervision. In those circumstances, the Apex Court has held that the raid was under Section 41 and not under Section 42.
9 (2000) 2 SCC 170 20
31. In Paulsamy10, it is held that the Court is required to take into account the factual presumption in law that official acts have been regularly performed and such presumption can be rebutted only during evidence and not at the bail stage.
32. In Rajesh11, the Hon'ble Supreme Court of India has held as follows:
19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act.
In Union of India v. Ram Samujh, (1999) 9 SCC 429, it has been elaborated as under:--
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:10
(2000) 9 SCC 459 11 2020 SCC Online SC 81 21
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent- accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
33. The main ground on which this bail application is moved is that the authorization given under Sub-Section (2) of Section 41 of NDPS Act by this Superintendent to Shri.Virender Singh, Intelligence Officer, to conduct search and seizure is 22 not issued in the ordinary course of official business, but appears to be a created document. Thus, the main ground that the entire search and seizure operation is illegal and it vitiates the trial and hence, petitioner is entitled to be released on bail is accepted, it amounts to pre-judging the issue with regard to validity of authorization before trial. On the contrary, the panchanama contains the signature of the Superintendent also. Therefore, the presumption in law that official acts have been regularly performed as held in Paulsamy must weigh in favour of prosecution. Viewed from this angle, presence of the Superintendent at the time of search and seizure would not vitiate the trial as held in S.Mohanty12. Re: Parity
34. It was argued by learned Senior Advocate that accused No. 1 and 3 have been granted bail. 12
(2000) 2 SCC 170 23 Therefore, petitioner is also entitled for bail on the ground of parity. While considering a similar situation, where bail was granted to other accused, the Hon'ble Supreme Court of India in Rajesh13, has held as follows:
"23. The submission made by learned counsel for the respondents that in Crime No. 14/2018, the bail has been granted to the other accused persons(A-1 to A-4), and no steps have been taken by the prosecution to challenge the grant of post-arrest bail to the other accused persons, is of no consequence for the reason that the consideration prevailed upon the Court to grant bail to the other accused persons will not absolve the act of the accused respondent(A-5) from the rigour of Section 37 of the NDPS Act."
35. It is relevant to record that, it is alleged in the complaint that petitioner herein handed over a bag containing contraband to accused No.1, J.Kannan. This Court while allowing the bail petition of Accused No.1 has held as follows:
'In other words, petitioner was acting as a carrier for the seized Ketamine 13 2020 SCC Online SC 81 24 material, which ('he' Sic.) was transporting in collusion with accused Nos. 2 and 3."
36. So far as accused No.3 Putta Venkateshwarulu is concerned, this Court while considering his bail petition has recorded that the material seized from his possession was not Ketamine.
37. Thus, there is a classic difference between the case of petitioner and accused No. 1 and 3.
38. Shri.Hashmath Pasha, argued one another ground with regard to Section 67 of NDPS Act. He urged that said issue has been referred to a larger Bench. However, in Sujit Tiwari, the Apex Court has held thus:
"9. We have gone through the statement made by the appellant under Section 67 of the NDPS Act. Without going into the question whether the statement is admissible or not, as this matter has been referred to a larger bench, we are, for the purpose of this case, taking the statement into consideration even though the appellant has resiled from the same."25
39. While rejecting petitioner's first bail application (Criminal Petition No.4448/2018), this Court has recorded elaborate reasons from paragraphs No. 22 to 31 of the said order as to why the satisfaction of the Court cannot be recorded under Section 37 of NDPS Act.
40. This is the third bail petition. It can be considered only if there are any change in circumstances. What is mainly argued is, legal infirmity with regard to the authorization and search and seizure operation. As recorded hereinabove, the authorization was placed on record by the prosecution in Criminal Petition No.4448/2018 and considered by this Court in paragraph No.15 of the said order.
41. Therefore, firstly there is no change in circumstance as far as the petitioner is concerned except that complaint has been filed by the NCB 26 before the learned Trial Judge. Secondly the grounds raised in this petition, are all matters of fact and require to be proved during trial. If any finding is recorded with regard to the legal infirmities pointed out by the learned Senior Advocate for the petitioner, it would amount to pre-judging the issue.
42. Therefore, for the reasons recorded hereinabove, this petition must fail and it is accordingly dismissed.
43. It is made clear that observations contained in this order are for the purpose of considering this bail application only.
No costs.
Sd/-
JUDGE SPS